General Terms and Conditions of Sales, Delivery and Payment

§ 1 Scope of application

(1) The following provisions shall apply exclusively to all of our deliveries and services (including any auxiliary services such as recommendations and advice). Differing or contrary terms shall not apply, except if expressly agreed upon in writing.
(2) These terms and conditions shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates within the meaning of Sec. 310 para 1 BGB (German Civil Code).

§ 2 Offers

(1) Our offers shall be non-binding, if not confirmed in writing. Delivery contracts and any other agreements (including side letters) as well as any statements by our representatives shall only become legally binding by our written confirmation.
(2) Insofar as the order of the customer given in writing, orally or by telephone constitutes on offer within the meaning of Sec. 145 BGB the customer remains bound to his order for two weeks.
(3) Any business mail printed by data processing systems (e.g. order confirmations, invoice, bank statements, payment reminders, etc.) shall be binding even without a signature.

§ 3 Prices

(1) Our prices shall be exclusive of VAT at the respective statutory rate. They shall apply ex works (EXW) Steinheim/Murr according to the INCOTERMS 2010.
(2) Where any changes are made to our prices or the pricing basis until the delivery day, we reserve the right to a respective adjustment of our prices. This shall only apply for delivery deadlines exceeding four months and for price adjustments of up to 10%. For any higher rates, a new price agreement shall be required. Where no such agreement is reached within 14 days after receipt of our respective offer by the customer, we shall have the right to withdraw from the contract by written notice.
(3) For orders for which no prices were agreed on, our list prices as valid on the date of delivery shall apply.
(4) Any confirmed prices shall apply only in case of acceptance of the agreed quantities. Partial deliveries shall be calculated separately where there are no express agreements to the contrary.

§ 4 Delivery

(1) Delivery is conditioned upon timely and proper performance of all duties of the customer. Defences based on non-performance of the contracts are reserved. In case of default in acceptance or other breach of duties to cooperate by the customer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. The right to claim further damages is reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such default of breach of duty to cooperate.
(2) FLEX reserves all rights to the supplied drawings and other product documents without restriction. Supplied drawings and other product documents must not be made accessible to third parties without the prior consent of FLEX and must be immediately released to FLEX on request if a contract is not concluded or cancelled.

§ 5 Time of delivery and delivery obstacles

(1) Delivery times stated by us are not binding. Delivery deadlines shall begin at the date of our order confirmation, but not before all details for performance are determined and any other prerequisites to be provided by the customer for the proper performance of the contract are cleared up. Advance deliveries and partial deliveries shall be permissible. The delivery date shall be the day of dispatch ex works (EXW according to INCOTERMS 2010) Steinheim/Murr.
(2) Where the customer violates his obligations to cooperate (e.g. by not scheduling in a timely manner or refusal of acceptance), we shall – regardless of our rights according to Sec. 4 para 1 above – have the right to deliver the goods or to withdraw from the part of the delivery contract not yet performed after a grace period has passed without any results. If the delivery is not accepted, not accepted on time or not accepted completely, we are entitled to store or dispatch the goods at the cost of the customer.
(3) The delivery of objects not manufactured by ourselves is subject to timely and correct delivery to us unless the delayed or wrong or missing delivery is due to our fault.
(4) Any occurrences of force majeure shall reasonably extend the delivery times and shall give us the right to withdraw from the contract wholly or in part. Fire, war, strike, lock-out, interruption of operations and any other unexpected circumstances not due to our fault that make delivery much more difficult or impossible shall correspond to force majeure. This shall also apply if the circumstances named arise during delay or for a sub-contractor. The customer shall not have any right of rescission or right to claim damages in these cases.

§ 6 Passing of risk

The danger of loss or damage to the goods shall pass to the customer when the goods delivered ex works (EXW according to INCOTERMS 2010) in Steinheim/Murr are handed over. In case a shipment to customer is agreed on, such risk passes upon dispatch.

§ 7 Payment conditions

(1) Our invoices shall be payable within 30 days from the date of the invoice without any discount. Payments shall only be deemed made as of the day on which we can dispose of the amount.
(2) Drafts and checks are only accepted after express agreement and on account of payment and subject to our acceptance in each individual case. In case of payment by draft, discounts shall not apply. Bank discount and any other expenses shall be assumed by the customer and paid immediately.
(3) Any payments shall be applied to our oldest claims without consideration of any deviating stipulations of the customer.
(4) In case of delayed payment, we shall charge default interest at the statutory rate. Any other claims for damages shall not be excluded. In case of delayed payment, non-clearing of checks and drafts, ceasing payment, initiation of any procedure for settlement, non-compliance with the payment conditions or presence of circumstances suitable for decreasing the creditworthiness of the customer, all of our receivables – also in case of respite – shall be payable immediately. We shall also have the right to execute any pending deliveries only against advance payment in cash or to withdraw from the contract after giving a reasonable grace period and to claim damages instead of performance.
(5) The customer shall only be entitled to set off against claims only insofar as the customer´s counterclaim is acknowledged by us, undisputed or assessed in a legally binding judgment.

§ 8 Retention of title

(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser’s request.

§ 9 Returned goods

(1) Acceptance of returned goods from our deliveries shall be excluded unless we have otherwise agreed in writing or we are under a respective legal obligation.
(2) In case of acceptance of returned goods, we shall charge a processing fee of 20 % of the net sales price, at least 50.00 EUR. Where there is any higher expense in any single case, we reserve the right to charge it.

§ 10 Warranty

(1) Precondition for any warranty claim of the purchaser is the purchaser´s full compliance with all requirements regarding inspection and objection established by Sec. 377 HGB (German Commercial Code).
(2) Statutory warranty claims shall be time-barred after 12 months upon the passage of risk.
(3) In case of non-conformity of the goods the customer is entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance has failed, the customer is entitled to reduce the purchase price or to withdraw from the contract.

§ 11 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law. The same applies in case of breach of fundamental contract obligations, whereas, in this case, our liability for damages shall be limited to the typically predictable damage. Fundamental contract obligations are those obligations whose fulfilment facilitates the proper performance of the contract and the observance of which the customer may rely on, as well as obligations whose breach endangers the attainment of the contractual purpose.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.

§ 12 Applicable law, Jurisdiction, Severability clause

(1) Legal relationships between us and the customer shall be subject to German law exclusively, under exclusion of the conflicts of law provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of jurisdiction shall be Steinheim. However, we shall have the right to apply to the court which is competent for the seat of the customer.
(3) Where any provision of these General Terms and Conditions of Sales, Delivery and Payment or any provision in the scope of other agreements between us and the customer is or becomes invalid, this shall not affect the validity of any other provision or agreement.